"In addition to the evidence indicating that EMW is operating legally and in conformity with the most important regulations of a licensed abortion facility, closing the clinic is against the public interest.” - Judge Ernesto Scorsone
Circuit Judge Ernesto Scorsone has sent sent Kentucky governor Matt Bevin packing, ruling the EMW Women's Clinic in Lexington can stay open while the state pursues a lawsuit the Bevin administration hopes will close the clinic.
“In addition to the evidence indicating that EMW is operating legally and in conformity with the most important regulations of a licensed abortion facility," Judge Scorsone wrote, "closing the clinic is against the public interest. “EMW is the only physician’s office that routinely provides abortion services in the Eastern half of the state, and both parties agree that a right to an abortion during the first trimester of pregnancy is constitutionally protected. Closing EMW would have a severe, adverse impact on the women in the Eastern part of the state.”
Anti-choice Governor Bevin sued the EMW clinic two weeks ago, alleging they lacked the required state license. In Kentucky a clinic dedicated to abortions must be licensed, but a clinic offering other services in addition to abortions is treated like a doctor's office, and does not require a special license. According to the Herald Leader, the Bevin administration has determined the EMW Clinic, which has been operating for many years, is not eligible to operate as an unlicensed doctor’s office that performs abortions, but is a full abortion clinic that requires state licensing.
"We’ve always operated as a doctor’s office” clinic owner Dr. Ernest Marshall explained on the stand. “The facility is only 2,500 square feet and we only do very small cases under local anesthesia, things that could be done in a doctor’s office.”
Governor Bevin’s general counsel, Steve Pitt, insisted that the clinic performed only abortions and thus must be licensed by the state.
“It’s very clear that EMW of Lexington is an abortion facility,” Pitt said. “If this is not the sort of abortion facility the General Assembly intended to be regulated and licensed, I can’t imagine what is.”
Judge Scorsone however, agreed with Dr. Marshall, saying the evidence indicates that the clinic operates as a private doctor’s office, despite the fact that abortions are done there.
“The uncontroverted testimony presented at the hearing is that it is within the standard of care to perform first trimester abortions in a doctor’s office and that these procedures are less dangerous than others routinely performed in an office setting,” Scorsone wrote. “The procedures used do not require sedation or the services of an anesthesiologist, factors that indicate EMW is a private physician's office."
The clinic stopped performing abortions on March 9, pending the judge’s ruling, but is planning to resume treating patients while the lawsuit proceeds. Scott White, an attorney representing the clinic, told reporters the EMW Clinic would reopen next week.
“We are obviously very pleased with the court’s decision,” White told reporters after the ruling. “As we said from Day One, this clinic has operated lawfully and appropriately in providing this service to women in this part of the state. The clinic looks forward to opening next week, and our hope is the cabinet will accept this decree and not waste any more effort and money on an argument that clearly has no weight."
Bevin spokeswoman Jessica Ditto said the administration would appeal the case as soon as possible.
Photo is from Victor Puente via Twitter